On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-6701-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt and Sapp-Peterson.
Plaintiffs, John and Sue Tai, appeal from an order entered by the motion judge granting the law firm, Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, L.L.C. (firm) leave to withdraw as counsel on their behalf. We affirm.
Plaintiffs retained Thomas J. Herten (Herten) in late June 2005 to represent them in connection with a dispute involving their condominium association, defendant Crown View Manor Condominium Association (Association), which culminated in the filing of a complaint on their behalf against the Association and certain employees and officers of the Association.
According to the certification submitted by Herten's associate, Daniel Gielchinsky, in support of the firm's motion to be relieved as counsel, the law firm and plaintiffs initially communicated regularly. Beginning in the spring of 2006, however, plaintiffs' communications became "sporadic, and eventually ceased altogether." In addition, Gielchinsky stated that as of April 2006, despite receiving monthly billing statements, plaintiffs made no payments "in accordance with the terms of the retainer agreement," which resulted in "a substantial balance due and owing to [the] firm."
Plaintiffs opposed the motion and submitted a certification from John Tai in which he expressed dissatisfaction that his case was being handled by an associate because Herten was "the attorney who signed [the] contract with [plaintiffs]." Plaintiffs also disagreed with the suggested litigation strategy of mediation and settlement.
The parties waived oral argument and the motion judge granted counsel's motion. Plaintiffs filed a timely appeal. Plaintiffs urge that "as [they] did pay the legal fees, there is no need for the court to get involved to help a law firm quit a contract whenever the law firm chooses to quit."
We have carefully reviewed the record in light of the written arguments advanced by the parties. We conclude that the issues presented by plaintiffs are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
A trial court's decision to grant a motion to be relieved as counsel will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Biegenwald, 126 N.J. 1, 21 (1991); State v. Noel, 386 N.J. Super. 292, 300 (Law Div. 2005). That said, "[f]irst and foremost, when terminating the attorney-client relationship, the lawyer is not on equal footing with the client." Pellettieri, Rabstein and Altman v. Protopapas, 383 N.J. Super. 142, 152 (App. Div. 2006). Nonetheless, where the relationship between lawyer and client has deteriorated to a degree where lawyer and client are at polar opposites, withdrawal is often in the best interest of the client. See The Tax Authority, Inc. v. Jackson Hewitt, Inc., 377 N.J. Super. 493, 501 n.4 (App. Div. 2005), rev'd on other grounds 187 N.J. 4 (2006); RPC 1.1b.
It is clear from the record before the motion judge that apart from communication problems that escalated into no communication at all, plaintiffs and the firm were at irreconcilable odds on the appropriate litigation strategy to be employed in the matter.
Rules of Professional Conduct 1.16(b)(4) permits an attorney to withdraw from representation if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. Here the record is replete with fundamental differences between plaintiffs and their attorneys related to litigation strategy. Plaintiffs refused to cooperate with any effort undertaken by their attorneys to resolve the dispute through mediation and settlement.
Under these circumstances, we discern no abuse of discretion on the part of the motion judge in granting the firm's motion to withdraw as counsel. ...